OPENING SUBMISSION OF THE BROTHERHOOD OF LOCOMOTIVE ENGINEERS INTRODUCTION AND BACKGROUND The dispute before this Board arose on September 26, 2001, when six carriers (Burlington Northern and Santa Fe Railway Co., Consolidated Rail Corp., CSX Transportation, Inc., Kansas City Southern Railway Co., Norfolk Southern Railway Co., and Union Pacific Railroad Co.) signed a letter of intent with the United Transportation Union (“UTU”) to assign to UTU-represented ground employees the responsibilities associated with the operation of locomotives via remote control to move cars, trains and/or engines in their switching and terminal operations. BLE objected to these proposed assignments and threatened to strike over the issue if the carriers proceeded to implement their intended changes. The carriers filed suit against BLE in the United States District Court for the Northern District of Illinois, claiming that the matter was not a major dispute over which the BLE could strike but instead raised a minor dispute that had to be resolved by Section 3 arbitration under the Railway Labor Act. The suit was held in abeyance pending the outcome of voting by the members of BLE on a proposed merger between BLE and UTU. The merger proposal was defeated and the carriers and BLE presented their respective positions on the legal character of the dispute to United States District Judge Joan B. Gottschall. On January 15, 2002, Judge Gottschall ruled that the carriers had satisfied their “relatively light burden” to establish that the dispute was a minor dispute and referred the parties to arbitration. BLE EXHIBIT 1, p. 5. She did not hold that the carriers possessed the right to assign the work in dispute to non-engineers. Rather, Judge Gottschall stressed that “It is important to emphasize what [the court] is not deciding.” [citation omitted] The court is not deciding whether the Railroads’ plan to implement the new technology is justified by its agreements with the BLE. The court is merely deciding -1- whether the Railroads’ argument that the parties’ agreement justifies its plan is “not frivolous or obviously insubstantial.” Id.... This court stresses that it is in no way agreeing with the Railroads’ interpretation of the collective bargaining agreements; in fact, it is arguable that locomotive engineers should have exclusive control over operation of the remote control transmitters. However, the court need not make this determination. “The resolution of the case depends upon the interpretation of the agreement, and while we realize that the [Railroads’] actions might be in violation of that agreement, it is for the appropriate adjustment board, and not this court, to draw the boundaries of the practices allowed by the agreement.” [citation omitted]. BLE EXHIBIT 1 at 5-6, 12-13.1 UTU was not a party to the carriers’ lawsuit. Following Judge Gottschall’s decision, BLE initiated negotiations with the carriers for an arbitration agreement to establish a board to resolve the dispute. Shortly after those negotiations began, UTU wrote to the carriers that it held an interest in the outcome of the arbitration and demanded to participate as a full party in the proceeding. BLE did not oppose UTU’s involvement in the arbitration. The Arbitration Agreement that created this 1 The Court’s decision to grant the railroads’ motion for a preliminary injunction was premised on a finding that the “remote control technology” would enable the railroads to operate locomotives from the ground without an engineer in the locomotive cab: Under the remote control system, an on-board computer is operated with a remote control device by an employee on the ground. The system makes it unnecessary to have an employee inside the locomotive. January 14, 2002 Order (BLE EXHIBIT 1) at 2. Recently, BLE learned that RCOs were controlling locomotive movements from inside the cabs of locomotives, often from the seat formerly occupied by the locomotive engineer. BLE filed a motion asking the Judge to clarify that the injunction she issued against BLE did not cover such situations. Following a hearing in which counsel presented argument on the motion (see BLE EXHIBIT 2), the Judge scheduled an evidentiary hearing on the issue. Prior to the evidentiary hearing, the parties agreed, without prejudice to any party’s position on BLE’s motion or in this arbitration, that pending a final decision by this Board, RCOs would be instructed that they “shall not use the remote control operating units to effectuate locomotive movements from inside the locomotive cab, except in an emergency.” BLE EXHIBIT 3. -2- Board (BLE EXHIBIT 4) was concluded on June 25, 2002.2 On August 20, 2002, the carriers concluded a final Remote Control Agreement with UTU that is now in effect. BLE EXHIBIT 5. The basic terms of that agreement are: (1) monetary protection for every UTU employee adversely affected for up to six years from the date remote control technology is implemented at the location where he/she works on a one-for-one basis, (2) the payment of a special allowance equivalent to forty-six minutes pay per tour of duty for every employee filling a remote control operator position, (3) all ground service employees will be trained so they qualify for these positions, and (4) the positions will be filled by bid or force assignments of UTU-represented workers. The issues presented in this dispute have been characterized by the parties as follows: BLE: The assignment of other than locomotive engineers to operate locomotives via remote control in connection with the movement of cars, trains and/or engines in terminal operations is a violation of the exclusive rights of locomotive engineers to perform such service pursuant to existing BLE Agreements and established practice. UTU: Were the involved carriers proper in their assignment of trainmen (yard conductors and yard helpers) to perform remote control operations in their terminals? 2 In their negotiations, the parties recognized that a Board comprised of four members - 3 partisan members and one Chairman - could deadlock. They were not able however to agree on a procedure for breaking potential deadlocks. Unable to resolve this procedural obstacle themselves, the parties requested the appointment of a Procedural Neutral by the National Mediation Board. On August 16, 2002, Procedural Neutral Francis Quinn chose the carriers’ proposed tie-breaking scheme, which called for the appointment of a Deadlock Neutral who would cast a sealed vote on the merits. In the event the Chairman sustains BLE’s position, resulting in a 2-2 tie, the Deadlock Neutral’s sealed vote will be opened and will decide the outcome. -3- CARRIERS: The Carriers have implemented remote control locomotive technology, which eliminates any need for an on-board locomotive engineer, in connection with work assignments that involve the gathering and distribution of freight and/or equipment in and around terminals. Under the Carriers’ collective bargaining agreements with the Brotherhood of Locomotive Engineers and the United Transportation Union at issue in this case, may the Carriers assign use of remote control technology to ground service employees represented by the UTU, thereby eliminating the locomotive engineer position? SUMMARY OF BLE’S SUBMISSION In this Submission, BLE will explain how a modern freight locomotive operates to move cars and freight in and around railroad terminals, and what are the responsibilities of an FRA-certified locomotive engineer and the responsibilities of ground personnel in connection with that operation. BLE will then show that the rules in the collective bargaining agreements and past practice between BLE and the carriers (both nationally and locally) require that (1) a locomotive engineer be part of the crew, (2) the duties and responsibilities of an engineer may not be assigned to other employees, and (3) no exceptions to these rules apply in this dispute. We will show how, contrary to the agreements and historical practice, under the guise of technology, the carriers have reassigned the duties and responsibilities of the engineer to UTU- represented personnel using a portable operating control unit known as a belt pack. BLE will demonstrate the fallacy in the carriers’ argument that the belt pack is a “communication device” such that management can assign its operation to a ground service employee pursuant to Article VIII, Section 3(a)(9) of the 1985 UTU National Agreement (Incidental Work)(BLE EXHIBIT 6) and/or -4- Article VIII, Section 3(h)3 of the Award of Arbitration Board No. 458 (Incidental Work)(BLE EXHIBIT 7). BLE will establish that its position in this dispute should be sustained both nationally and on a property-by-property basis. In that regard, this Submission is divided into two parts. Because all of the carriers involved in the dispute are bound by some agreements and rules that are common, and their arguments based on technology and the Incidental Work Rules to support what they have done are common, the first part of BLE’s Submission addresses the dispute as it affects all properties. The second part of BLE’s Submission provides the Board with an analysis of rules that are particular to certain carrier systems, or parts of systems. That part of the Submission supports the proposition that should the Board find that the common facts do not lead to a uniform finding in favor of BLE, then the Board must look at the rules and practices on the properties one-by-one to determine whether BLE’s position should be sustained locally. We submit that because the existing agreements and established practice create an exclusive right in locomotive engineers to operate locomotives in connection with the movement of cars or trains in terminal operations, the carriers’ assignment of other operating craft personnel to do that work via remote control is improper.